Email Proves an Elusive Public Record

ByADAM ELMAHREKNovember 11, 2010 at 5:47 PM

Thursday, November 11, 2010 | Although email has firmly supplanted printed letters and memos as our most common form of written communication, it remains an elusive public record in Orange County.

A check into email retention policies across Orange County revealed wide inconsistencies. Some cities destroy emails after 30 days, some after 90 days. Some have no policy at all. Some direct their employees to save certain categories of emails and destroy the rest.

Most are violating the California Public Records Act, according to the First Amendment advocacy group Californians Aware.

As a result, transparency in city government is "to a great degree defeated entirely," said CalAware general counsel Terry Francke, who is also Voice of OC's open government consultant.

The Public Records Act calls for all government agencies in the state to keep emails related to city business for a minimum of two years, Francke and another CalAware attorney said. Exceptions to retention, the attorneys said, are rare but include personal messages like luncheon invitations or blast emails like "there are doughnuts in the break room."

City attorneys and one organization that acts as a resource for local governments dispute CalAware's reading of the law, saying the act does not require specific retention times.

And it is this reading of the law upon which many cities base their policies. Officials in Irvine, Huntington Beach and Costa Mesa routinely destroy unsaved city emails in as little as 30 days, while other cities, like Fullerton and Newport Beach, make an attempt to save emails identified as important correspondence but still destroy others.

Garden Grove leaves it up to the city employee who created the email to determine whether it is a public record and then print it out if he or she determines it is. Employees are directed to ask the city clerk if they are not sure whether the email is a public record.

Richard McKee, an attorney with CalAware, said that kind of policy isn't nearly enough. "To think that individual employees are going to know enough about public records to make those kinds of judgments is ridiculous," he said.

An Irvine City Council resolution passed in 2002 calls for emails in the system older than 30 days to be destroyed. It bases the policy on a section of the government code that allows a city to destroy a record when it is "no longer required."

McKee called the resolution "clearly illegal."

"Nothing in the CPRA [California Public Records Act] or Gov't Code sect. 34090 allows the wholesale destruction of email records," McKee wrote in an email.

City officials have defended their practice of destroying emails as legal and, in at least one case, argue there simply aren't enough resources to identify and save emails considered public records.

Costa Mesa employees decide whether an email is important enough to save, and the city doesn't have the resources to apply a more comprehensive retention policy, according to an official in the city's information technology department.

Huntington Beach City Attorney Jennifer McGrath, whose city regularly destroys emails after they become more than 90 days old, says the city's policy is in line with state law. McGrath acknowledged that emails are public records subject to the state's public records law but said that the law governing retention of city records does not apply to emails.

"They [emails] are not records intended to be retained in the normal course of business for the city," McGrath said. She added that the Public Records Act does not specify retention time.

JoAnne Speers, executive director of the Institute for Local Government, agrees with McGrath's interpretation. The state's records retention law and public records law allow for cities to make the call on how long emails should be retained, Speers said.

"The law gives local agencies the ability to determine what's a public record that is of lasting importance to the conduct of the public agency's business and that needs to be maintained," Speers said.

McKee counters that McGrath's interpretation of state law is wrong. He said email, as a medium, does not change the fact that as a written communication it is required to be kept as long as other public records.

"The two-year retention applies to all public records. I don't know how she's coming up with that interpretation," McKee said.

The disagreement highlights a lack of clear direction on what to do with emails. There haven't been any defining court cases on the matter, and the state has not issued a statewide standard.

"I lay the blame at the feet of the Attorney General's Office," McKee said. "I think the AG's Office should really take the lead here and create a standard policy that they all should expect to conform to."

McKee had a recent showdown with Lake Forest over its retention policy. The city was about to move into a policy of purging emails in Microsoft Outlook that are more than 90 days old.

He caught wind of the plan, and one of his attorneys, Kelly Aviles, sent a letter to the city attorney in September threatening a writ of mandate to stop destroying city emails. Since then, the city has indefinitely postponed its destruction policy and is working to provide city employees with public records training, according to city Public Information Officer Debra Rose.

"Our whole purpose of this is to make sure records are handled properly" Rose said.

McKee says he is still waiting for the city to send him a draft of an approach that will satisfy the law. He also said he hopes the experience with Lake Forest will be the starting point of, eventually, sweeping reform of local governments' policies regarding emails.

"We thought this would be a good place to really come up with something to tout to other agencies as a reasonable approach," McKee said.